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Trump's DOJ is at it again! In a brief filed Friday, the Department of Justice argues to the Supreme Court in Harris Funeral Homes vs. EEOC that trans people deserve to be discriminated against. It also throws in some arguments that would allow all kinds of discrimination against all women, because why not?

Somehow, the DOJ's brief managed to be even worse than I expected.

Their logic seems to rest on two main contentions. First is that a transgender woman is actually a man who can legally be forced to present as male in the workplace. Second is that transgender people, as a class, can legally be discriminated against. They also argue that the court ruling for the woman in this case, who was fired simply for being a transgender woman, "would transform Title VII into a blanket prohibition on all sex-specific workplace practices" -- and that, apparently, is a bad thing.


Aimee Stephens is a transgender woman who was assigned as male at birth. When she began working at R.G. & G.R. Harris Funeral Homes, she presented as male. After working at Harris Homes for several years, she informed her boss, Thomas Rost, that she was transitioning and would be presenting as female at work. So, because he is a good, Christian man, Rost fired Stephens.

There's really no debate here on why Stephens was fired -- she was fired for being transgender. In this litigation, Rost testified that he fired Stephens because, "he was no longer going to represent himself as a man. He wanted to dress as a woman." Misgendering is always cute. And this Rost guy is just a real gem.

Rost stated under oath that he "believe[s] that the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman or for a biological female to deny her sex by dressing as a man" and that Rost "would be violating God's commands if [he] were to permit one of [Harris Homes'] male funeral directors to wear the uniform for female funeral directors while at work, or if [he] were to permit one of [Harris Homes'] female funeral directors to wear the uniform for male funeral directors while at work."

Because Jesus told him to hate trans people, I guess. But that's okay, because he doesn't particularly like women, either. And what is this wonderful dress code Rost is talking about?

Well, ladies have to wear skirts or dresses and men have to wear suits. Gods forbid a woman wants to wear something like a pantsuit while working for this guy. Until after this lawsuit was filed, our buddy Rost here also gave a clothing allowance to women but not to men. But these things are also totally fine, because he never hires women anyway?

People who discriminate against transgender people are absolute trash, there's no question about it. But I also just always want someone to explain sex and gender to these fuckers. The idea that there are two binary sexes has always been false. Transgender people have always existed, whether or not they felt comfortable being open about it. There were openly trans people in ancient Sumer, Assyria, and Oman. Around 2% of people are born intersex. And chromosomes aren't determinative of sex, either. A lot of biological women have XY chromosomes. People with Klinefelter syndrome, who are usually assigned male at birth and have male genitalia, have two or more X chromosomes. There are also people with XXXX, XXX, XXY, and XYY chromosomes. And those are just a few examples.

The Sixth Circuit is the federal appellate court that covers Kentucky, Ohio, Michigan, and Tennessee, and it's traditionally pretty conservative. The SCOTUS Obergefell marriage equality decision actually happened after the Sixth Circuit said "nahhh, gays don't need no marriage." But last year, they issued a pretty great decision telling Rost to put the kibosh on his transphobic bullshit.

But then the Supreme Court decided to step in. So here we are.

Let's break this down

The Department of Justice and the Alliance Defending Freedom are straight-up arguing that companies should have the right to discriminate against transgender people simply for being trans, and FUCK THAT. But they somehow found a way to make their position even worse.

Let's dig into this a bit. Title VII of the Civil Rights Act of 1964 says that employers can't discriminate on the basis of sex, race, color, national origin, or religion. But that still left courts to determine what actually counts as discrimination on the basis of sex.

The case Price Waterhouse v. Hopkins helped clear some of this up. The plaintiff in that case, Ann Hopkins, never wanted to be a civil rights hero -- she was a kickass consultant at Price Waterhouse who just wanted to do her job and be taken seriously. Hopkins was the top biller in her office and recommended for a partnership. But, because she didn't act enough like a lady for the powers that be, her partnership was denied on two different occasions.

As laid out in her obituary:

Leaders at Price Waterhouse criticized her as "macho," "difficult" and "aggressive," according to a book she would later write. One male supervisor told Ms. Hopkins that, to have any chance of becoming a partner, she needed to "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry."

None of these things, however, would have been an issue if Hopkins had been a man. The court noted that "some of the partners reacted negatively to Hopkins' personality because she was a woman." Being assertive and aggressive was seen as a positive trait for a man, but not for a woman.

One partner described her as "macho"; another suggested that she "overcompensated for being a woman"; a third advised her to take "a course at charm school." Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only "because it's a lady using foul language." Another supporter explained that Hopkins had matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.

Thankfully, the Supreme Court jumped in and ruled in Hopkins's favor, finding that

we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for, in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.

The Hopkins decision explained that Title VII's prohibition on discrimination on the basis of sex "means that gender must be irrelevant to employment decisions." In enacting the Civil Rights Act, "Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."

Now, the fucking Department of Justice is saying that sex stereotypes are actually fine. If the Court had used the standard the DOJ advocates for in this case, Ms. Hopkins never would have won her case.

This funeral home guy really doesn't like trans people. Or intersex people. Or gender nonconforming people. Or women.

The Hopkins decision noted that, "[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." This, of course, is super offensive to the DOJ, which argues both that trans people don't deserve legal protection and that sex stereotyping is actually fine.

The DOJ brief includes all of the disgusting stuff that you might expect, like arguing that discrimination against a trans woman is fine because she "is biologically male and sought to dress according to the dress code for the opposite sex." Their whole argument is that trans people have to be judged on the basis of the sex they were assigned at birth. So there are a lot of cute sections trying to intimate that trans people don't even really exist.

Stephens contends that sex was a but-for cause of Stephens's termination because Harris Homes would not have fired a female funeral director who (like Stephens) sought to dress as a female. That comparison fails because it does not compare Stephens to a similarly situated individual of the opposite sex. It compares Stephens to a biological female who, unlike Stephens, seeks to dress according to the dress code for her own sex.

At some points in the brief, the bigots argue Stephens is a man, while at other points they seem to argue that transgender is a sex of its own? At one point, they actually argue that "[i]t is not evident that it is impossible to engage in transgender-status discrimination without considering sex." Oh, and discrimination against transgender people is totally fine, as long as the employer discriminates against ALL trans people equally.

The employer treats transgender individuals less favorably than nontransgender individuals. But so long as the employer treats transgender individuals of both sexes equally, it has not discriminated against either males or females. Put differently, if an employer discriminates against a transgender individual, the less favorable treatment is not the "consequence" of that individual's sex.

In this case, Harris Homes did not discriminate against Stephens because of "sex" by terminating Stephens (a biological male) based on Stephens's stated intention to dress as a member of the opposite sex (female). To be sure, Harris Homes treated Stephens less favorably than male employees who dressed as males at work. But neither Stephens nor the Sixth Circuit has identified evidence in the record that Harris Homes did or would treat more favorably a female employee who is otherwise similarly situated to Stephens, i.e., who intended to dress as a member of the opposite sex.

And then they go even further, arguing that Hopkins and Title VII don't actually bar sex discrimination and sex stereotyping at all.

Price Waterhouse did not interpret Title VII to bar sex stereotyping per se. The plurality in that case merely recognized that evidence of sex stereotyping can be relevant in proving a plaintiff 's claim that an employment action was motivated by sex.

The stakes are high

The decisions in these cases could affect essentially every workplace in the country. And although the cases are aimed specifically at hurting LGBTQ people, LGBTQ people aren't the only ones who stand to be hurt by SCOTUS ruling in favor of discrimination.

As described by Rewire:

It's also an argument that strikes at the heart of civil rights protections for sex-stereotyping and sexual orientation discrimination claims. In siding with Stephens last year, the Sixth Circuit explained "it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex." That logic applies equally to the other two LGBTQ employment rights cases the Court will hear alongside Harris Funeral Homes that seek to answer whether sexual orientation discrimination is also protected under Title VII. The administration's brief in those cases is due later this week, and it's fair to expect the administration will argue, again, that the answer is no.

The Court is hearing these cases at a time when the stakes couldn't be higher for LGBTQ employees. Only 20 states and the District of Columbia have laws that explicitly prohibit discrimination on the basis of sexual orientation and gender identity. Three states—Arkansas, Tennessee, and North Carolina— have laws affirmatively preventing passage and enforcement of local laws and ordinances that would protect LGBTQ employees. But if the Court accepts the Trump administration's position, the impact would reach all employees. Workplace policies that mandate appearance standards based on an employer's religious beliefs pertaining to assigned sex at birth would be perfectly fine, so long as both men and women were expected to adhere to them.

Oral arguments in this case are happening October 8, and those should give us a better idea of what each SCOTUS justice thinks about the merits of the case. But we are having to hope that George W. Bush appointee John Roberts -- who dissented in Obergefell -- will be the voice of reason and stand up against discrimination.

[ NYT / DOJ / EEOC / Sixth Circuit / Radiolab / Rewire ]

Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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